Public Policy Removals and Exclusions (Online Course)

What is covered?

This is a course that will equip you to understand the ways in which EEA nationals can be expelled from the United Kingdom due to for reasons of public policy and security, and due to allegations over abuse or misuse of EEA rights, and the various arguments that might be run against such decisions in the context of appeals or judicial review applications.

Increasingly EEA nationals face expulsion from the United Kingdom for reasons of public policy including allegations over abuse or misuse of EEA rights.

We address:

– The statutory powers to expel

– The current thinking on abuse of rights and sham marriages

– Deportation of EEA nationals

– The new public interest provisions in the 2016 EEA Regs

– Non-suspensive appeals and returning to present one’s case before the First-tier Tribunal

– The various arguments that might be run via appeal or judicial review

Course Extract:

Introduction

The Citizens Directive is transposed into domestic law via The Immigration (European Economic Area) Regulations 2016 (the “2016 Regs”). You can find the 2016 Regs at http://www.eearegulations.co.uk/Latest/All. It is generally more effective, at least at Tribunal level, to cite the 2016 Regs unless your argument depends on the difference between the Citizens Directive and the attempt to implement it in UK law.

The provisions for expulsion of EEA nationals for public interest reasons have received significant amendment via the 2016 Regs. The 2016 Regs and supporting guidance also include various provisions on the cancellation, misuse and abuse of the right to reside.

The intention of the legislators was set out by Baroness Williams of Trafford in her statement recorded in Hansard of 15 December 2016:

The changes clarify that we can take deportation action in a broad range of cases, including against those who abuse their free movement rights by facilitating illegal immigration or engaging in immigration abuse – for example, through sham marriage – or those who undermine our public services through tax evasion or benefit fraud. The regulations also make it clear that it is not only high-harm criminality that threatens the fundamental interest of the UK but persistent low-level offending as well.

As noble Lords can see, the new regulations do not significantly change the legal position; rather, they spell out the detailed factors that decision-makers and the courts should take into account when considering whether the deportation of an EEA national is in the fundamental interests of society. The new drafting approach in the 2016 regulations merely sets out a fuller range of circumstances that fall within the term “public policy”.

Key legal provisions relating to the removal of EEA nationals

One important feature of the new Regulations is the provisions for removal of EEA nationals. Reg 23 provides:

(6) Subject to paragraphs (7) and (8), an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if—

(a) that person does not have or ceases to have a right to reside under these Regulations;

(b) the Secretary of State has decided that the person’s removal is justified on grounds of public policy, public security or public health in accordance with regulation 27; or

(c) the Secretary of State has decided that the person’s removal is justified on grounds of misuse of rights under regulation 26(3).

In other words, administrative removal is available in each of these three scenarios:

– where there is no longer a right to reside (to include cases where a residence card has been issued but the matter has now been identified as a marriage of convenience)

– implementing public policy etc expulsion decisions (including cases where there is involvement in a marriage of convenience, both for the EEA national and a third country family member)

– where rights have been misused (to include “rough sleeping” cases, and those where conducted appears to be intended to circumvent the requirement to be a qualified person, or where there is an attempt to enter the UK within 12 months of a removal under Reg 23(6)(a) where there is no evidence of meeting any requirements of the 2016 Regs save for the initial right of residence)

The reference to sub-paras (7) and (8) refers to

– limitations on removal, firstly to prevent removal automatically for recourse to social assistance, or if they have leave under the Immigration Act 1971, in which case removal may only be for public policy and similar reasons

– confirmation that in Reg 23(6)(b) (ie public policy) cases where there is a deportation order, there will be prohibition on return until the order is revoked or pending expiry of a specified period in the order.

These removal decisions invalidate any EEA document previously issued (Reg 24(2)). Individuals subject to these provisions can be detained, as various detention powers are brought into play – under the Immigration Act 1971 for those facing public policy expulsion, and under the Immigration and Asylum Act 1999 for those facing removal on other grounds: see Reg 32(1)-(4).

Some classes of case which would previously have been conducted via administrative removal are now to proceed via public policy expulsion provisions: in particular

– those without have been involved with marriages of convenience

– those fraudulently obtaining an EEA right to reside

Expulsion provisions relating to expulsion on public policy and similar grounds

The Citizens’ Directive provides significant protection to EEA citizens and their family members facing expulsion from the host Member State. These are the key principles in the Directive: You can see the whole provision here:

Article 27

General principles

Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.

Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.

The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted. …

Article 28

Protection against expulsion

Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.

The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.

An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they:

(a) have resided in the host Member State for the previous 10 years; or

(b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.”

From this you can see that:

– There are limited grounds for expelling an EEA national – basically public policy/security/health (we will refer to these generally as “public interest” reasons). Public policy and security require a “genuine, present and sufficiently serious threat affecting one of the fundamental interest of society”

– Expulsion may not be pursued for economic ends

– Decisions must be proportionate

– The ability to remove must be based on the individual’s current circumstances and personal conduct: expulsion for reasons of “general prevention” or simply “previous criminal convictions” will not do

– Relevant considerations are length of residence, age, health, family and economic situation, social and cultural integration with the host Member States and links with country of origin

– There are different levels of protection against expulsion – the general limitations just set out apply for those exercising EEA rights generally, but for those with permanent residence, only “serious grounds of public policy/security” will do, and for EU nationals who have 10 years residence or EU citizen children, only imperative grounds of public security can suffice

These considerations are transposed into domestic law via Reg 27 of The Immigration (European Economic Area) Regulations 2016. You can see the whole provision here.

Decisions taken on grounds of public policy, public security and public health

27.—(1) In this regulation, a “relevant decision” means an EEA decision taken on the grounds of public policy, public security or public health.

(2) A relevant decision may not be taken to serve economic ends.

(3) A relevant decision may not be taken in respect of a person with a right of permanent residence under regulation 15 except on serious grounds of public policy and public security.

(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who—

(a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or

(b) is under the age of 18, unless the relevant decision is in the best interests of the person concerned, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989(1).

(5) The public policy and public security requirements of the United Kingdom include restricting rights otherwise conferred by these Regulations in order to protect the fundamental interests of society, and where a relevant decision is taken on grounds of public policy or public security it must also be taken in accordance with the following principles—

(a) the decision must comply with the principle of proportionality;

(b) the decision must be based exclusively on the personal conduct of the person concerned;

(c) the personal conduct of the person must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent;

(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;

(e) a person’s previous criminal convictions do not in themselves justify the decision;

(f) the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person.

(6) Before taking a relevant decision on the grounds of public policy and public security in relation to a person (“P”) who is resident in the United Kingdom, the decision maker must take account of considerations such as the age, state of health, family and economic situation of P, P’s length of residence in the United Kingdom, P’s social and cultural integration into the United Kingdom and the extent of P’s links with P’s country of origin.

(7) In the case of a relevant decision taken on grounds of public health—

(a) a disease that does not have epidemic potential as defined by the relevant instruments of the World Health Organisation or is not a disease listed in Schedule 1 to the Health Protection (Notification) Regulations 2010(2); or

(b) if the person concerned is in the United Kingdom, any disease occurring after the three month period beginning on the date on which the person arrived in the United Kingdom, does not constitute grounds for the decision.

Basically these domestic provisions contain the same provisions as just summarised – however Reg 27(8) introduces a special set of criteria for considering whether the fundamental interests of society ae threatened.

(8) A court or tribunal considering whether the requirements of this regulation are met must (in particular) have regard to the considerations contained in Schedule 1 (considerations of public policy, public security and the fundamental interests of society etc.).

Note that Reg 27(5) states that the past conduct of an individual is to be take into account, and that the threat to public policy need not be an imminent one.

The removal provisions bite at every potential stage whereby an individual interacts with immigration control system:

– The Secretary of State may refuse to issue, revoke or refuse to renew relevant documents attesting to permanent or temporary residence on public interest grounds (Reg 24)

– The Secretary of State may make an exclusion order on public interest grounds (Reg 23(5))

– Immigration officers may refuse admission at the border for public interest reasons (Reg 23(1)) or where there are reasonable grounds for suspecting future misuse of the right to reside (Reg 23(3)) or where there is a deportation or exclusion order in force (Reg 23(2))

– Residence documents including permanent residence documents can be revoked or not renewed where any EEA rights has ceased to apply (Reg 24(3)-(4))

– Similarly, an Immigration Officer may revoke residence documents on a person’s arrival in the UK where they do not hold the asserted right (Reg 24(7)) – and an entry clearance officer may do so before they travel (Reg 24(6))

– The right to reside may be cancelled on public interest grounds where the individual holds the right to reside under the 2016 Regs but they cannot be removed (Reg 24(7))